Jitan Singh vs Secy. of State and Another

Fazl Ali, J.—The appellant was plaintiff in a suit which he brought against the Secretary of State and the proprietors of a permanently settled estate known as Nizamat Khulpura Kamala. His allegation was that he had a holding of 31 bighas 10 kathas 6 dhurs at a rental of Rs. 64 besides cess in Nizamat Khulpura Kamala, tauzi No. 1860, but the tahsildar of the Khas Mahal estate had forced him to pay rent for 20 bighas odd on the ground that it formed part of a Government estate. He thus asked for a declaration that the entire area of 31 bighas 10 kathas and 6 dhurs held by him was in Khulpura Kamala in the patti of defendants 2 to 9; that the defendant first party had no right to realise any rent from him; that, at any rate, the latter could not receive more than Rs. 1-15-6 per bigha as rent from him, if for any reason it was held that the defendant first party was entitled to realise rent for a portion of his holding.

The plaintiff also claimed a refund of Rs. 189-9-3 besides interest on the ground that this amount had been realised from him in excess of the amount which he was in law liable to pay. The proprietors of Nizamat Khulpura Kamala who were defendants second party supported the plaintiff"s case and so it was contested by the defendant first party only. His main defence was as follows: During the pendency of the Revisional Survey proceedings it was found that some land had alluviated to the south of the Nizamat estate and so a proceeding under Act 9 of 1847 was started. In the meantime without the knowledge or consent of the Government, the proprietors of the Nizamat estate Khulpura Kamala got 20 bighas odd excess land entered in the survey papers in the name of the plaintiff. Ultimately the Government decided to take possession of the accreted area, but as it was found that the plaintiff''s name stood recorded in the Record of Rights, the land was assessed with a rental of Rs. 41-15-9 besides cess which was accepted by the plaintiff. The plaintiff having thus admitted his tenancy under the defendant first party was estopped from denying the right of the defendants to realise rent from him. He was a mere non-occupancy raiyat of the land in suit and later on, between 1924 and 1926, the land having considerably improved the rent had been enhanced to Rs. 68-8-6.

The trial Court decreed the plaintiff''s, suit; but this decree was modified by the learned District Judge in appeal. The latter held in favour of the plaintiff that he was an occupancy raiyat and that the rent was not liable to be enhanced except by suit. He was however of opinion that the Secretary of State was competent to take khas possession of the lands and that the plaintiff was thus a tenant under the defendant first party. As to the question of estoppel the learned District Judge held that the point was unimportant and there was nothing which would act as an estoppel to prevent the plaintiff from maintaining that his rent was Rs. 1-15-6 per bigha as alleged by him. The chief point argued, before us on behalf of the appellant in this appeal related to the question, whether the Government was entitled to take khas possession of the disputed area.

The learned District Judge has, in arriving at this conclusion, referred not only to Act 9 of 1847 but also to Section 2 of Act 31 of 1858 and Section 3 of Regn. 7 of 1822. Section 3 of Act 9 of 1847 provides that it shall be lawful for Government in all districts in which a revenue survey may have been completed, to direct from time to time whenever ten years from the approval of any such survey shall have expired, a new survey of lands on the banks of rivers and on the shores of the sea, in order to ascertain the changes that may have taken place since the date of the last previous survey, and to cause new maps to be made according, to such new survey. Section 5 of this Act substantially provides that when on inspection of any such new map it appears to the local Revenue Authorities that land has been washed away or lost to any estate paying revenue directly to Government, a deduction is to be made from the sadr jama of the said estate to recompense the holder of the estate for the loss of the land. Section 6 provides conversely that when on inspection of any such new map it shall appear to the local Revenue Authorities that land has been added to any estate paying; revenue directly to Government, they shall without delay assess the same with a revenue payable to Government and they shall report their proceedings forthwith to the Board, of Revenue whose orders thereupon shall be final.

In this particular case a map was prepared according to Section 3 of the Act and a proceeding was started to the assessment of revenue upon the new accretion. The matter was then reported to the Board of Revenue and ultimately it was decided that the Government should take khas possession of the land. It will appear that there is no express provision in Act 9 about the Government taking khas possession of the accreted lands and so it was contended on behalf of the plaintiff as well as the defendants second party that all that could have been done under this Act by the Government was to assess revenue, but it could not take khas possession. This contention found favour with the trial Court, but, as I have already stated the learned District Judge was of the view that this Act when read with Section 2 of Act 31 of 1858 and Regn. 7 of 1822 empowered the Government to take khas possession. The learned District Judge, though he refers to Section 2 of Act 31 of 1858 in this connection, probably meant to refer to Section 1 as Section 2 seems to have no bearing on the question at all. Section 1 provides:

When land added by alluvial accession to an estate paying revenue to Government becomes liable to assessment, if it be so agreed on between the revenue authorities and the proprietor or proprietors, the revenue assessed upon the alluvial land may be added to the jama of the original estate; and in such case a new engagement shall be executed for the payment of the aggregate amount....

Then it is added:

It the proprietor or proprietors object to such an arrangement, or if the revenue authorities are of opinion that a settlement of the alluvial land cannot properly be made for the same term as the existing settlement of the original estate, the alluvial land shall be assessed and settled as a separate estate with a separate jama, and shall thenceforward be regarded and treated as in all respects separate from and independent of the original estate, whether the separate settlement be made with the proprietor or proprietors or the land be let in farm in consequence of the refusal of the proprietor or proprietors to accept the terms of settlement. The separate settlement may be permanent, if the settlement of the original estate is permanent.

The learned District Judge appears to have been influenced by the provision that if the revenue authorities are of opinion that the land cannot be settled on the same term as the existing settlement, it may be settled as a separate estate. The latter part of the section however seems to indicate that the settlement can be made with other proprietors only if the proprietors of the original estate refuse to accept the terms of settlement. Section 3 of Regulation 7 of 1822 comes in because the last portion of Section 1 of Act 31 of 1858 seems to indicate that the separate settlement in certain cases may not be permanent. The relevant portion of Section 3 of Regulation 7 runs as follows:

So in any case wherein the zamindars and other proprietors may refuse to continue their existing engagements, or to enter into new engagements, on equitable terms, it shall be competent to the revenue authorities to let the lands in farm for such period, not exceeding 12 years, ... or to assume the direct management of them, and to retain them under khas management during the period aforesaid or such shorter period as may be judged proper.

It will be noticed therefore that both in Section 3, Regn. 7 of 1822 and Section 1 of Act 31 of 1858 it is provided that the Revenue Authorities are to settle the lands in the first instance with the zamindars or proprietors to whose estate land is added by alluvial accession and it is only in case of unwillingness on their part to take the settlement that some other arrangement is to be made. The real questions therefore to be determined in this case were (1) whether the land in dispute had been added by alluvial accession to the estate of the defendants second party within the meaning of Act 31 of 1858, and (2) whether there was an offer on the part of Government to settle the lands with them and there was unwillingness on their part to take the settlement upon the annually assessed jama. These questions have not been dealt with in the judgment of the lower appellate Court though it appears to me that the present suit cannot be properly disposed of without deciding them.

It is contended on behalf of the defendant first party that he has an adjoining estate known as Kattwapatti Rampur and has also Diara Khura Bela on the west of these lands. A reference to the map, Ex. N (4), will also show that to the east of the disputed lands is a temporarily settled estate known as Diara Maharajganj. In these circumstances it would be important to find out whether the lands in dispute were "added by alluvial accession" to the estate of the defendants second party or to any of the other adjoining estates.

Another question which has not been satisfactorily determined is the question of estoppel. The case of the defendants first party was that the plaintiff had already paid rent to him and, in those circumstances, he should not be permitted to deny his title as a landlord.

The learned Munsif found that the payment was made under coercion and therefore the principle of estoppel did not apply. The learned District Judge considered that the point was unimportant. That view would be perfectly intelligible in the light of his decision that the khas mahal authorities were entitled to take possession of the disputed land and so the defendant was in any case a tenant under the defendant first party. The learned District Judge, however, goes further to state that he did not find anything which would act as an estoppel to prevent the plaintiff from maintaining that his rent was Rs. 1-15-0 per bigha as alleged by him. This would show that the learned District Judge has entirely misunderstood the plea of estoppel. The question of estoppel was raised on behalf of the defendant first party in order to show that his title as a landlord could not be denied by the plaintiff. It was not raised in order to show that the plaintiff could not claim that he was liable to pay a higher rent than Rs. 1-15-0 a bigha. In my opinion the question of estoppel also needs reconsideration in the light of the evidence adduced by the parties.

As the case has not been properly dealt with by the lower appellate Court, the decree of that Court should, in my opinion, be set aside, and the case remanded for disposal according to law, specially with reference to the points indicated by me. There is one further question which was argued and that Is whether the appellant is entitled to a refund of Rs. 189-9-3. It is contended that the plaintiff will be entitled to a refund of the entire amount paid by him if it is found that he is a tenant under the defendants second party and not under the defendant first party, but in any case, and even on the finding of the learned District Judge, he is entitled to a refund of such amount as may have been realised from him in excess of the amount which he has been held liable to pay.

This matter will also be considered by the lower appellate Court. Costs will abide the result.

Macpherson, J.

I agree.